EXECUTIVE SUMMARY: This
weekly newsletter covers:
NY Court Denies Motion to Dismiss Claim for Alleged Spoliation
NY COURT DENIES MOTION TO DISMISS CLAIM FOR ALLEGED SPOLIATION
In Greater New York Mutual Insurance Co. v. Cuberon, (Dec. 24, 2002), the Supreme Court of New York, Appellate Division, First Department, reviewed the motion to dismiss a complaint for alleged spoliation of evidence. The reviewing court upheld denial of the motion. Plaintiff's subrogor, the landlord of the affected premises, acted in good faith and pursuant to orders of the Buildings Department, as well as defendant's written consent, in removing the remains of the fire from the subject apartment, after allowing defendant, the apartment's tenant at the time of the fire, unfettered access to the apartment for one month to view and inspect the evidence. Defendant made no showing that the landlord was on notice that she intended to commence litigation at the time she requested access to the apartment with an expert engineer or that the landlord discarded evidence in bad faith. Prior to the landlord's demolition of the fire- damaged apartment, the apartment was inspected by defendant, and by the Fire Department and Department of Buildings, both of which impartial municipal agencies issued reports respecting the causes of the fire. Defendant, thus, has not by reason of the landlord's actions, been disabled from defending against plaintiff's claim that the fire was attributable to her negligence.
Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610,
San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax),
firstname.lastname@example.org (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.
Please direct comments, suggestions, stories, and other items to the author by
e-mail at email@example.com